Recitation in accordance with CPLR 2219 (a) of the papers submitted on the notice of motion, under motion sequence one, by plaintiff Ilya Friedman (hereinafter Friedman) for an order pursuant to CPLR 3211(b) dismissing the second affirmative defense asserted by the defendants 292 Fuel Stop, Inc., 292 Gas Shop, Inc., Orenzib Bhatti individually and Souhil Bhatti, individually Corporation#1, Corporation, #2 transacting Business as a Gas Station located at 292 Neptune Avenue, Brooklyn, New York, 11235 (hereinafter collectively as defendants) claiming lack of personal jurisdiction over them. The motion is opposed.

Notice of Motion

Affirmation of Friedman's counsel

Affidavit of Friedman

Exhibits A-C

Affirmation of Defendants' counsel in Opposition

Affidavit of Bhatti

Affirmation of Friedman's counsel in Reply

Exhibits A-D

On March 3, 2021, Friedman commenced the instant action for damages for breach of contract by filing a summons and verified complaint (hereinafter the commencement papers) with the Kings County Clerk's office (hereinafter KCCO). On May 29 and June 11, 2021, Friedman filed four affidavits of service of the commencement papers on the defendants with the Kings County Clerk's office. The verified complaint alleges forty-three allegations of fact in support of four denominated causes of action. The first cause of action is for breach of contract for unpaid rent. The second cause of action is for breach of contract based on non-reimbursement of the cost for improvement to a gas station. The third cause of action is for a declaratory judgment. The fourth cause of action is for unjust enrichment.

On June 18, 2021, the defendants filed a joint verified answer containing fifteen denominated affirmative defenses with the KCCO. The second affirmative defense claims that the court lacked personal jurisdiction over the answering defendant due to lack of service.

Friedman seeks an order pursuant to CPLR 3211(b) dismissing the second affirmative defense asserted by the defendants claiming lack of personal jurisdiction over them. The affirmation of defendants' counsel filed under NYSCEF document number 19 concedes that service of the commencement papers on defendants 292 Fuel Stop, Inc., and 292 Gas Shop, Inc. was proper and that the Court does have personal jurisdiction over these corporate defendants. However, defendant's counsel maintains that service upon the individual defendants Orenzib Bhatti and Souhil Bhatti was not done in strict conformity with CPLR 308 (2). In the affirmation in opposition by defendants' counsel, the defendants have asked the Court to dismiss the action against the individual defendants or, in the alternative, order a traverse hearing.

A party seeking affirmative relief of the court such as an order of dismissal based on an objection of law must follow the procedures set forth in the CPLR and applicable court rules for making a motion. The Uniform Rules for New York State Trial Courts set forth, at 22 NYCRR 202.7 and 202.8, the court rules that pertain to motion practice. 22 NYCRR 202.7(a) provides that "no motion shall be filed with the court unless they have been served and filed with the motion papers on notice of motion." It also directs compliance with the statutory procedures prescribed in CPLR 2214. At a minimum, a movant must file a notice of motion that shall "specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor" (CPLR 2214 [a]; see Tirado v Miller, 75 AD3d 153, 158 [2nd Dept 2010]).

22 NYCRR 202.8 provides that "all motions shall be returnable before the assigned judge, and all papers shall be filed with the court on or before the return date." Article 21 of the [*2]CPLR sets forth, among other things, the rules pertaining to the form, filing and service requirements of all papers to be considered by the court.

Applying the aforementioned court rules and statutory procedures, the Court finds that the request made in the affirmation of defendants' counsel is not a motion. Moreover, the request is not properly before the court because the defendants did not make a motion or cross motion for said relief (see Katz v Katz, 153 AD3d 912 [2nd Dept 2017]).

When moving to dismiss affirmative defenses, the plaintiff bears the burden of demonstrating that such defenses are without merit as a matter of law because they either do not apply under the factual circumstances of the case or fail to state a defense (CPLR 3211[b]; Lewis v U.S. Bank Nat'l Ass'n, 186 AD3d 694 [2nd Dept 2020]). On a motion to dismiss defense on ground that it is not stated or has no merit, the court should apply the same standard it applies to a motion to dismiss cause of action on ground that pleading fails to state cause of action, and the factual assertions of the defense will be accepted as true; moreover, if there is any doubt as to the availability of a defense, it should not be dismissed (id.).

The affidavit of plaintiff's process server demonstrates that each of the individual defendants was served with the commencement papers pursuant to CPLR 308 (2). A process server's affidavit of service constitutes prima facie evidence of proper service (Bank v Sabi, 182 AD3d 582 [2nd Dept 2020]). Although the defendants second affirmative defense alleges no personal jurisdiction due to lack of service, their opposition papers clarify that they are contesting the propriety of the service rather than the lack of service.

The defendants interposed their answer on June 18, 2021. An objection that the summons and complaint ... was not properly served is waived if, having raised such an objection in a pleading, the objecting party does not move for judgment on that ground within sixty days after serving the pleading, unless the court extends the time upon the ground of undue hardship (U.S. Bank Nat'l Ass'n v. Roque, 172 AD3d 948, 950 [2nd Dept 2019], citing Deutsche Bank Natl. Trust Co. v Acevedo, 157 AD3d 859, 861 [2nd Dept 2019], quoting CPLR 3211[e]). Here, the defendants waived the defense of lack of personal jurisdiction on the basis of improper service of process, as they failed to move for judgment on that ground within sixty days after serving their answer.

Accordingly, Friedman has established entitlement to dismissal of the second affirmative defense of lack of jurisdiction as asserted by defendant Orenzib Bhatti and Souhil Bhatti. Furthermore, based on the aforementioned concession by defendants' counsel regarding service upon defendants 292 Fuel Stop, Inc., and 292 Gas Shop, Inc., the second affirmative defense of lack of jurisdiction as asserted by these corporate defendants is also dismissed.

The motion of plaintiff Ilya Friedman for an order pursuant to CPLR 3211(b) dismissing the second affirmative defense asserted by the defendants 292 Fuel Stop, Inc., 292 Gas Shop, Inc., Orenzib Bhatti individually and Souhil Bhatti, individually Corporation#1, Corporation, #2 transacting Business as a Gas Station located at 292 Neptune Avenue, Brooklyn, New York, 11235 (hereinafter collectively as defendants) claiming lack of personal jurisdiction is granted.